Europe's highest court has rejected an appeal by one of Ireland's biggest pharmacy chains against rules restricting the employment rights of foreign-educated graduates. Jamie Smyth, European Correspondent, reports.
The judgment against Sam McCauley Chemists follows months of delay by the Government, which pledged to remove the rule last July but has still not done so. The restriction, known as the "three-year rule", means that Irish or foreign-born chemists who graduate from EU universities, rather than Irish colleges, cannot open or manage a pharmacy that is less than three years old.
Pharmacy chains say the rule is severely restricting their business, where up to two-thirds of pharmacists are educated in Britain due to place shortages at Irish universities.
Sam McCauley Chemists, which employs 550 people at 21 outlets in the Republic, pursued a legal action against the State over the regulation in the High Court. The Supreme Court referred the case to the European Court of Justice (ECJ) in 2005 to advise on whether the Government had introduced the regulations in an illegal manner in 1991.
Yesterday, the ECJ upheld the Government's right to prevent chemists, who are educated abroad, from opening or managing a pharmacy that has been established for less than three years. The court dismissed Sam McCauley Chemists' case that the State transposed an EU directive into domestic law in an illegal manner.
The chain had challenged the decision on a technicality, arguing that the then minister for health's decision in 1991 to transpose the directive using a statutory instrument to amend an Act of the Oireachtas was illegal and ran counter to the Constitution. However, the ECJ found against this, concluding the minister had the right to transpose legislation using statutory instrument. The judgment will be forwarded to the Supreme Court for it to formally rule on the case.
Sam McCauley, owner of Sam McCauley Chemists, said: "This is ludicrous in a country which would have a major pharmacist manpower crisis but for the availability of these UK trained Irish pharmacists. It is unconscionable that these young pharmacists are being used as pawns in the bargaining process."
He said the company was considering a further appeal on the substantive issues. The case ruled on by the ECJ involves a Scottish chemist, Mark Sadja, who qualified in Britain and was appointed by Sam McCauley Chemists to run one of its new outlets in Cork. The Pharmaceutical Society of Ireland, the regulatory body in the Republic, took a case against the chain over the appointment, and in 2002, the High Court ruled in the society's favour.
The society refused to comment on the judgment yesterday.
