VfGH: Pharmacy proviso is not unconstitutional

Apr 7, 2021 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) has ruled in a procedure at the request of a drugstore chain that the ban on the purchase and sale of non-prescription medicines (Apothekenvorbehalt) pursuant to Sec. 57 (1) of the Medicines Act (Arzneimittelgesetz, AMG) does not violate the right to freedom of occupation (Art 6 Staatsgrundgesetz - StGG).

The petitioning drugstore chain intended to distribute all non-prescription medicinal products in its branches. Sec. 57(1) AMG prohibits the sale of medicinal products to druggists. However, certain medicinal products which, even in the case of foreseeable use not in accordance with their intended purpose, do not pose a risk to the health or life of humans or animals, may be distributed by druggists if they are exempted from the prohibition of distribution by decree of the Minister of Health and the Minister of Labor (Abgrenzungsverordnung 2004).

The drugstore chain argued that the ban on dispensing violated the right to free exercise because it was disproportionate. The public interest of patient and consumer protection, drug safety, health and consumer protection could also be fulfilled by drugstores. The pharmacy proviso was therefore not the least restrictive means of achieving these interests.

The VfGH stated that the standardization of the pharmacy requirement for non-prescription medicinal products for drugstores is very well suited to realize the public interests mentioned, as pharmacies are subject to a large number of regulations under public law, professional ethics and disciplinary law. In particular, they are obliged to have sufficient pharmaceutical staff. In addition, there are detailed requirements regarding the equipment of pharmacies as well as the handling and storage of medicinal products.

The pharmacy proviso was also considered to be proportionate. Although the drugstore chain argued that the requirements for pharmacies could also be fulfilled by drugstores, the VfGH contrasted this with the complex regulatory system for pharmacies. Thus, the interest intended by the pharmacy proviso was actually achieved.

The pharmacy proviso is therefore not a disproportionate encroachment on the freedom of occupation and was therefore not to be repealed as unconstitutional.

VfGH V 75-76/2019-15 (03.03.2021)