Young v The Pharmaceutical Society of Ireland

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-HC 1927
• Docket Number: No. 2098p/1992,[1992 No. 2098 P.]
• Date: 01 January 1995

1994 WJSC-HC 1927

THE HIGH COURT

No. 2098p/1992

YOUNG v. THE PHARMACEUTICAL SOCIETY OF IRL

BETWEEN

AILISH YOUNG

PLAINTIFF

AND

THE PHARMACEUTICAL SOCIETY OF IRELAND, THE MINISTER FOR HEALTH, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

PHARMACY ACT 1962 S2(3A)

EUROPEAN COMMUNITIES (RECOGNITION OF QUALIFICATIONS IN PHARMACY) REGS 1991 SI 330/91 PARA 4

PHARMACY ACT (IRL) 1875 S22(a)

TREATY OF ROME

PHARMACY ACT (IRL) 1875 S22

PHARMACY ACT (IRL) 1875 S30

PHARMACY ACT 1962 S2(3)

PHARMACY ACT 1962 S4

PHARMACY ACT 1962 S5

TREATY OF ROME ART 54

TREATY OF ROME ART 56(1)

TREATY OF ROME ART 57

TREATY OF ROME ART 57 PARA 2

REYNERS V BELGIUM 1974 ECR 615

THIEFFRY V CONSEIL DE L'ORDRE DES AVOCATS ALA COUR DE PARIS 1977 ECR 656

PATRICK V MINISTRE DES AFFAIRES CULTURELLES 1977 ECR 1199

MINISTERE PUBLIC V AUER 1979 ECR 437

EEC DIR 85/433

EUROPEAN COMMUNITIES (RECOGNITION OF QUALIFICATIONS IN PHARMACY) REGS 1987 SI 239/87

EUROPEAN COMMUNITIES ACT 1972 S2

EEC DIR 85/432 ART 2

PHARMACY ACT 1962 S2

LAWLOR V MIN FOR AGRICULTURE & ORS 1988 ILRM 400

O'BRIEN V IRELAND 1990 ILRM 466

EEC DIR 85/433 ART 2

EEC DIR 85/433 ART 4

EEC DIR 85/433 ART 1

Synopsis:

ACTION

Cause

Absence - Community - Law - Council - Directive - Implementation - Amendment of domestic law - Plaintiff prejudiced by amendment - Plaintiff without right to challenge validity of directive - (1992/2098 P - Murphy J. - 11/2/94) [1995] 2 I.R. 91 1994 2 ILRM 262

|Young v. Pharmaceutical Society of Ireland|

EUROPEAN COMMUNITIES

Member State

Nationals - Establishment - Right - Chemist - Irish citizen - Qualifications acquired in the United Kingdom - Return to Ireland - Registration in Irish register - Prohibition against starting new pharmacy - Prohibition imposed by Council directive - Irish chemist unable to challenge validity of directive - European Communities (Recognition of Qualifications in Pharmacy) Regulations, 1991 (S.I. No. 330), article 4 - Pharmacy (Ireland) Act, 1875, s. 22A - Pharmacy Act, 1962, s. 2 - Council Directive 85/433/EEC, article 2 - Council Directive 85/432/ EEC - Treaty of Rome (EEC), articles 52, 56, 57 - (1992/2098 P - Murphy J. - 11/2/94) - [1995] 2 I.R. 91 - [1994] 2 ILRM 262

|Young v. Pharmaceutical Society of Ireland|

PROFESSIONS

Chemists

Pharmacy - Business - Commencement - Prohibition - Plaintiff - Qualifications - United Kingdom certificate - Registration in Irish register - Plaintiff prevented from working in pharmacy which was in operation for less than three years - Result of Council directive - (1992/2098 P - Murphy J. - 11/2/94)

|Young v. Pharmaceutical Society of Ireland|

1 Judgment of Mr. Justice Francis D. Murphy delivered the 11th day of February 1994.

2 In this case the Plaintiff claims a declaration that Section 2 (3A) of the Pharmacy Act, 1962(No. 14 of 1962) as inserted by Paragraph 4 of the European Communities (Recognition of Qualifications in Pharmacy) Regulations, 1991 ( S.I. No. 330 of 1991) is null, void and invalid having regard to the provisions of European Community Law.

3 The impugned section provides as follows:

4 "In this section the expressions "authorised person" and "registered pharmaceutical chemist" shall not include a person registered by virtue of Section 22(a) 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."

5 The meaning and the significance of that section cannot be found otherwise than in the context of the national law dealing with pharmaceutical chemists, the provisions of the Treaty of Rome and the directives made thereunder with a view to the recognition within Member States of what is now the European Union of Qualifications in Pharmacy.

6 The Pharmacy Act (Ireland) 1875 provided for the constitution and incorporation of the Pharmaceutical Society of Ireland who are the first named Defendants herein. The Act then goes on to constitute the Society as a body who may examine candidates in accordance with the provisions of the Act and to certify those qualified to act as chemists or druggists. The Act then provides in Section 22 that the persons so certified shall be entitled upon payment of the proper fees and charges to be registered under the Act as a chemist or druggist. Section 30 then provides that it should be unlawful for any person to sell or keep open a shop for retailing, dispensing or compounding certain poisons unless such person be registered as a pharmaceutical chemist or a chemist and druggist under that Act. There are in fact two separate registers to be kept, one a register of pharmaceutical chemists and the other a register of chemists and druggists.

7 As the purpose of the legislation does have some bearing on the issues in the present case it may be helpful to quote in full the quaint long title of the Act which is as follows:-

"An Act for the more effectual preserving the health of his Majesty's subjects, for erecting an Apothecaries Hall in the City of Dublin, and regulating the profession of an apothecary throughout the Kingdom of Ireland."

8 The Pharmacy Act, 1962seems to have been designed primarily with a view to regulating the keeping open of shops for the dispensing or compounding of medical prescriptions or the sales of poisons by corporate bodies. Section 2 of that Act distinguishes between shops which are kept open for either of those purposes by an individual on the one hand or by a body corporate on the other. In the former case the person by whom the shop is kept open must be "an authorised person" and the dispensing or compounding of medical prescriptions or the sale of the poisons must be supervised by him or by some other authorised person. Where the shop is kept open by a body corporate the statutory requirement is that:-

"The dispensing and compounding of medical prescriptions therein are personally supervised by a person who is a registered pharmaceutical chemist, a registered dispensing chemist and druggist or a licentiate of Apothecaries Hall and is employed by the body corporate in a whole time capacity and is not acting in a similar capacity for any other body corporate or any authorised person or on his own behalf".

9 Subsection 3 of Section 2 defined an "authorised person" as meaning:-

"A registered pharmaceutical chemist, a registered dispensing chemist and druggist, a licentiate of Apothecaries Hall, or a registered medical practitioner -."

10 Section 4 of the Act altered to some extent the educational provisions of the principal Act and Section 5 is of some significance in that it permitted the Council of the Society (in accordance with the regulations to be made with the approval of the Minister) to register in the register of Pharmaceutical Chemists for Ireland, a person who applied for such registration and showed to the satisfaction of the Council that he had undergone, outside the State, such courses of training and passed such examinations as were specified for the purpose in the regulations.

11 Such briefly was the purpose and code governing the registration of Pharmaceutical Chemists in Ireland and the monopoly - if it should be so described - conferred on them of keeping open shops in the State for the dispensing or compounding of medical prescriptions at the time of Ireland's accession to the Treaty of Rome.

12 The purpose of the Treaty was the liberalisation of commercial activities and the creation of a common market by progressive steps within the transition period which expired in December 1969, that is to say, before Ireland's accession to the Community.

13 Title one of the Treaty deals with the free movement of goods and title three deals with the free movement of persons, services and capital. Chapter 3 of that title deals with the commitment to abolish restrictions on the freedom to provide services within the Community but it is Chapter 2 that contains the particular provisions dealing with the eliminations of restrictions and the freedom of establishment of nationals of one Member State in the territory of another Member State. Again it is provided in this regard that within the framework of the relevant chapter that the restrictions on the freedom of establishment aforesaid is to be abolished by progressive stages in the course of the transitional period. Article 54 identified the mechanism by which it was intended that this objective should be achieved. First, it was stipulated that the Council should draw up a general programme for the abolition of existing restrictions on freedom of establishment within the Community and then in order to implement that general programme or in the absence of such a programme, if not drawn up, the Council was required to issue directives in order to achieve a stage in attaining freedom of establishment as regards a particular activity. Article 56(1) sets out the limit beyond which the right of freedom of establishment did not go, namely,:-

"The provisions of this chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health."

14 Article 57 of the Treaty is clearly and expressly designed to facilitate nationals of one Member State setting themselves up in another Member State for the purpose of pursuing commercial activities therein. Paragraph 1 of that article - which is crucial to these proceedings - provides as follows:-

"In order to make it easier for persons to take up and pursue activities as self-employed persons, the Council shall, on a proposal from the Commission and in co-operation with the European Parliament, acting unanimously...