Action over pharmacy regulations dismissed

The High Court has dismissed a challenge to regulations prohibiting any non-Irish EU citizen who has not graduated here as a pharmacist from running a pharmacy unless it has been opened for more than three years.

The challenge to the "three-year rule" was taken by Sam McCauley Chemists (Blackpool) Limited, a company operating 10 pharmacies, and by Mr Mark Sajda, a graduate of the University of Aberdeen with an address at West Avenue, Frankfield, Cork.

In his reserved judgment yesterday, Mr Justice McCracken said the net issue in the case was whether the EC (Recognition of Qualifications in Pharmacy) Regulations 1991, introduced by the Minister for Health and Children to give effect to an EC Directive relating to recognition of qualifications in pharmacy, involved any decision of policy or the exercise of any discretion involving a policy decision by Ireland.

Prior to the regulation, the Pharmacy Act (Ireland) 1875 and the Pharmacy Act 1962 regulated who could act as a pharmacist, he said.

Directive 85/433/EEC, issued in September 1985, obliged Ireland and other EU states to recognise specified qualifications set out in the directive so that they had the same effect as national qualifications.

However, he said, the directive stopped short of requiring such recognition in all cases because it would be premature to do so and it therefore did not require recognition in the case of new pharmacies as defined in the directive.

The regulations subsequently made by the Minister simply repeated what was in the directive and nothing more, he said. Prior to the regulations, Mr Sajda could not have acted as a pharmacist in a new pharmacy here and still could not do so. The law had not been changed in that regard.

The judge said that, in one sense, it could be said there was a policy decision not to extend recognition of other qualifications to new pharmacies. However, that was not a decision implemented by a statutory instrument but was a decision not to change the existing law. 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 EC Council of Ministers as set out in the directive, it was protected by the Constitution.