Information Note on the Court’s case-law 50

February 2003

Gallego Zafra v. Spain (dec.) - 58229/00

Decision 14.1.2003 [Section IV]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Annulment of authorisation to open a pharmacy, on account of excessive number of pharmacies for the area’s population: inadmissible

In 1989 the applicant obtained authorisation to open a ph armacy and opened his dispensary in January 1990. Two pharmacists who owned dispensaries situated near to that of the applicant contested the decision authorising the opening of the pharmacy on the ground that one of the conditions laid down by national le gislation governing the opening of a pharmacist's dispensary had not been satisfied, namely the presence of a population of at least 2 000 inhabitants. By judgment given in 1993, the High Court of Justice declared the authorisation null and void. It held t hat the requirement for a population density of at least 2 000 persons which was necessary in order to authorise the setting up of a new dispensary had not been satisfied.  The applicant's appeal on a point of law and an amparo appeal were dismissed. In th e meantime, in January 2000, the applicant closed his pharmacy.

Inadmissible under Article 1 of Protocol N° 1: Being an administrative act, authorisation to open a pharmacy did not constitute a firm and definitive right, since it was conditional on the out come of any administrative appeals susceptible of being brought by third parties with a view to its annulment. In reliance on such authorisation, the applicant had opened a pharmacy and run it for about ten years until its ultimate closure at the end of th e proceedings annulling that authorisation. Annulment of the authorisation to open the dispensary therefore constituted a measure governing the use of property. The interference was in accordance with national legislation because it was based on legal prov isions held to be in conformity with the Constitution. Rules designed to preserve the geographical distribution of pharmacists' dispensaries in the light of population could be regarded as reflecting the requirements of the general interest of the communit y as regards access to pharmaceutical services. The interference was not disproportionate to the general interest aim having regard to the precarious nature of the authorisation granted to the applicant, the importance of guaranteeing a network of pharmaci es throughout the national territory which was sufficient and tailored to population in order to guarantee the public service of supplying medicinal products, and the substantial margin of appreciation available to the contracting States in this respect:ma nifestly unfounded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes